Andrew Ngugi Mugo (Chairman), James Mwangi Nyingi (Treasurer), Esther Wangui Susan (Secretary) (Suing on behalf of Gwikuria Self Help Group) v Rosemary Ngendo Njau

3. The Plaintiff prays for judgment against the Defendant for orders that: a) A declaration that the Members of the Plaintiffs and Members of Gwikuria Self Help Group have had adverse possession of land parcel number Ruiru Ruiru East Block 2/3278 against the Defendant and that the said registration of the Defendant as proprietor thereof be cancelled and the same be registered in the names of the Plaintiffs for the benefit of its Members. b) In the alternative and without prejudice to (a) above, a declaration be made that there exists an equitable constructive trust between the Defendant, the registered owner of land parcel number Ruiru Ruiru East Block 2/3278 in favour of the Members of the Plaintiffs and that the said trust be determined and the said suit land be registered in the names of the Plaintiffs for the benefit of its members. c) Costs of the suit and any other or further relief that this Court may deem fit to grant. The Plaintiffs’ Case 4. The Plaintiffs, bringing this suit as the Executive Committee Officials on behalf of the members of Gwikuria Self Help Group, state that on 28/12/2006, two representatives ELC NO. E120 OF 2022 2|Page

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purchased a parcel of land known as Ruiru/Ruiru East Block 2/13278 (measuring 0.406 hectares) from the Defendant for KES 200,000 on behalf of the group. The Defendant received an initial deposit of KES 160,000 on the date of the agreement and the remaining balance of KES 40,000 on 3/04/2007. Upon receipt of full payment, the Defendant handed over the original title deed to the purchasers through a transaction witness. The self-help group subsequently subdivided the land into 16 subplots and allocated them to its members, who took immediate physical possession, built dwelling houses, and in some instances resold their portions to third parties. 5. The Plaintiffs allege that in an attempt to renege on the sale, the Defendant fraudulently claimed her title deed was lost by obtaining a Police Abstract on 9/09/2019, swearing a false Affidavit, obtaining a Land Registrar's notice, and placing an advertisement in The Standard Newspaper. Furthermore, a previous suit filed by the Defendant (Ruiru MCLE No. E002 of 2021) was withdrawn on 01/08/2022, for lack of jurisdiction. The Plaintiffs contend that their members have maintained continuous, open, and actual physical possession of the land for over 15 Consequently, they assert years that the since 03/04/2007. statutory 12-year threshold for adverse possession has been met, and that an equitable constructive trust has been created in their favor ELC NO. E120 OF 2022 3|Page

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as the Defendant effectively relinquished all proprietary rights to the property. Defendant’s Case 6. The Defendant denies the claims set out in the Plaint and asserts her legitimate ownership as the registered proprietor of RUIRU/RUIRU EAST BLOCK 2/3278. She explains that around November 2007, under financial distress, she agreed to sell the land for KES 600,000 to three men, including an individual named Kinuthia. After receiving a deposit of KES 200,000, she handed the original title deed to Kinuthia solely to allow him to conduct a search and prepare transfer documents. However, Kinuthia disappeared, failed to show up at an Advocate’s office to execute the agreement, and never paid the remaining balance of KES 400,000. Years later, after Kinuthia was arrested by the DCI in 2017 for fraudulent land transactions, he re-engaged the Defendant in 2018, admitting he had not fully purchased the property and revealing that he had lost the original title deed. 7. Addressing the occupation of the land, the Defendant states that during a routine visit in 2016, she noticed street children had put up makeshift structures on the property. She took steps to evict the street children from the suit property as she was keen to construct and develop the property. She contends that Kinuthia fraudulently subdivided the land without her consent or any executed agreement, using her name to sell plots to unsuspecting third parties like ELC NO. E120 OF 2022 4|Page

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the Plaintiffs. To replace her lost title deed, she obtained a Police Abstract in September 2019 and pursued official republication, but her efforts to secure a new title were frustrated when the Plaintiffs registered a restriction on the property. She denies that the Plaintiffs have occupied the land since 2007 or established adverse possession, characterizing their structures as illegal erections built at Kinuthia's instigation. 8. Consequently, the Defendant in her Amended Statement of Defence dated 29/03/2023 prays that the Plaintiffs' suit be dismissed with costs and for the Court to issue the following orders: a) A declaration that the Defendant is the rightful and absolute proprietor of parcel RUIRU/RUIRU EAST BLOCK 2/3278. b) A permanent injunction restraining the Plaintiffs, their servants, agents, employees, or anyone acting under their instructions from entering, erecting permanent or temporary structures on, or interfering with the Defendant's use and enjoyment of the suit property. c) An order for the eviction of the Plaintiffs and any other illegal occupiers from the suit property. d) An order for the demolition of all illegal permanent and temporary structures erected on the suit property. ELC NO. E120 OF 2022 5|Page

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e) An order awarding the costs of the suit to the Defendant. Plaintiff’s Evidence 9. The Chairman of the Self-Help Group testified as PW1 Andrew Ngugi Mugo adopting his witness statement dated 11/10/2022 as his evidence in chief and list of documents of even date in support of the case. 10. It was his testimony that the Defendant sold the land to the Plaintiffs and gave them title after paying her amount of the sale of the parcel. He told the Court that they have the original title in Court and that he was not aware that the Defendant was issued with a provisional title on account of a lost title. According to him it is not true that the title was lost, the Defendant lied. For PW1, the Defendant was paid the full purchase price and the Plaintiffs were given by the Defendant the original title. 11. He testified that the Plaintiffs have positioned and use of the soot property since April 2007 and the land was subdivided into 16 plots and members of the Plaintiff live on the parcel of land. 12. During cross-examination Counsel for the Defendant Mr. Kinyua who was holding brief for Wamboi Kuria informed the Court that he has no instructions to cross examine the witness and therefore the Plaintiff called their second witness. ELC NO. E120 OF 2022 6|Page

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13. Antony Muiruri Njoka testified as PW2 testifying that he is a member of the Plaintiff self help group and he adopted his witness statement dated 11/10/2022 as his evidence in chief. 14. Edward Mutia Muchoku testified as PW3 stating that he is a farmer/vegetable trader at Juja and he adopted his witness statement dated 11/10/2022. He testified that he is a member of the self help group. According to his testimony, he balloted and got a share certificate and he was allotted Plot No. 12. That this process was done in 2007 and since then he stated that he has constructed a house on the plot and that he lives on the land. Further he told the Court that the other plots are also occupied by members of the selfhelp group and since occupation they have never been removed from the suit property. 15. Before hearing of the Plaintiff’s last witness the Defendant filed an notice of motion application dated 22/12/2020 3 seeking to have the proceedings of 24/10/2023 set aside or in the alternative the honorable Court to recall the Plaintiff’s witness who testified on 24/10/2023 for cross examination and reexamination. In its decision dated 9/10/ 2024 declined the prayer to set aside the ex-parte proceedings Detailed 24/10/2023 but in the interest of justice the Court allowed the recall of the Plaintiff’s witness who testified 24/10/2023 for cross examination and reexamination. ELC NO. E120 OF 2022 7|Page

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16. Thus On 3/03/2025 PW1 Andrew Ngugi Mugo was recalled for cross examination and re-examination by the Counsel for the Defendant. Upon reexamination he told the Court that he is the Chairman of the Plaintiff, Esther Wangui is the secretary and James Mwangi is the treasurer. However, he testified that in 2006 he was not the chairman of the self help group and that the Sale Agreement was signed in 2006 it is produced at page 34 of the Plaintiff’s trial bundle and it is dated 28/12/2006. That the parties who signed on to the agreement are the seller who is Rosemary Ngendo, Isaac Kinuthia Njogu and Paul Waweru Kinuthia Njogu who are the purchasers. According to him, the Sale Agreement does not state that the said purchasers were buying the said suit property on behalf of the self help group. 17. That a consideration of Kes 160,000 whose paid leaving a balance of Kes 40,000 which was to be paid later it is his testimony that they paid in cash although the agreement does not state so. That the minutes produced at page 21 and dated 30/10/2005 show at paragraph 3 that Isaac Kinuthia, Paul Waweru and Francis Njenga were authorized to purchase the property on behalf of the group. 18. However, he stated that in the Sale Agreement, Francis Njenga does not appear as a party purchasing the Suit property and also the minutes that he had produced do not show the signature of Chairman, Secretary and Treasurer. That whereas Paul Waweru is deceased, Isaac Kinuthia is ELC NO. E120 OF 2022 8|Page

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alive but despite him being an important witness PW1 stated that they have not invited him as a witness. 19. He testified that despite stating at paragraph 7 and 9 that the group subdivided the plots he has not attached mutation forms to support his claim and also no mutation was registered at the Land’s Office. He however stated that Edward Muya can confirm that members took possession as from 3/04/2007. 20.The report of the Valuer produced at page 45 he testified is dated 15/02/2022 and that page 10 of the valuation report shows plots owned by members and plot No. 12 is shown and recorded to be vacant. He further testified that he was in Court as the Chairman of Gwikuria Self-Help Group although he had no authorization letter or minutes with a resolution to authorize representation. 21.On re-examination he testified that he produced the Sale Agreement signed by three people who were sent to purchase the property on behalf of the self-help group. That the Defendant did not deny having entered into an agreement with Mr Kinuthia and that she handed over original title deed to him. In her statement of defense at paragraph 6 she acknowledges dealing with Mr Kinuthia. And at paragraph 14 she acknowledges seeing people on the suit property. Further, at paragraph 19 she states that she handed over the original title deed. ELC NO. E120 OF 2022 9|Page

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22.It is PW 1’s testimony, that at page 42 of the trial bundle it shows how the plots were subdivided. He stated that the Defendant did not attend the meeting at the Land Control Board despite being invited. Eventually the suit property was not transferred to the names of the self-help group members and therefore they could get a mutation without the consent and that is why they decided to come to Court to seek help. He testified having produced copies of shares of the Members he also stated that Isaac is not a member because he sold his plots to a 3rd party who is now a member. 23.Upon recall of PW2 for cross-examination he stated he was present when the Sale Agreement was done and at page 34 of the Trial Bundle it shows that he was a witness. That there was Isaac Kinuthia, the buyer and Paul Waweru, Rosemary Ng’endo is the one who was the seller. According to him, he took Paul Waweru and Isaac Kinuthia to the Seller’s home. 24.PW3, Antony Muiruri Njoki, produced and adopted his witness statement as evidence in chief. He stated that he was a businessman who used to stay at Githurai in 2005. When he was cross-examined he stated that he was in Court as a member and shareholder of Gwikuria Self-Help Group the Plaintiff. 25.He confirmed that having looked at the Sale Agreement he could only see the names of Paul Waweru and Isaac Kinuthia but not the name of Gwikuria Self-Help Group. ELC NO. E120 OF 2022 10 | P a g e

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26.On re-examination he told the Court that as a founder member they sent Paul Waweru and Isaac Kinuthia to purchase on their behalf the land and money came from the members’ savings. That when he balloted he got plot number 10 as indicated at page 39 of the trial bundle. 27.PW4 - Edward Muhia Muchoku testified that he is a green grocer staying at Murera having entered onto the suit property in 2007 and was allotted plot No. 12. He adopted as his evidence in chief his witness statement dated 11/10/2022 and he produced his Share Certificate as exhibit at page 38 of the trial bundle. According to him he has constructed on his plot a stone house and it is not vacant. 28.On cross-examination he confirmed that he balloted for the plot in 2007 and started construction although he had not placed before the Court any documents to support his claim. During re-examination he faulted the valuation report which was stating that his plot was vacant. According to him, he cannot cheat about his residence. 29.PW5 - Zacharia Mackenzi Ndeti the Valuer testified and stated that he is a property valuer registered and practicing under the name of Zen Consult Valuers and Management Limited. He stated that he has a Bachelor’s of Art Degree in Land Economics and is registered with Institute of Surveyors of Kenya. 30.It was his testimony that his relation to this case he visited the disputed property after receiving instructions from Jesse ELC NO. E120 OF 2022 11 | P a g e

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Kariuki & Company Advocates to inspect the property title No. Ruiru Ruiru East Block 2/3278 to ascertain current market value as at February 2022. He observed that it was subdivided into 16 subplots by a company that bought the land for their members. He then gave a value for each subplot. That during the visit he met the purchasers who had constructed on six (6) parcels. He noted that when he wrote the report he failed to capture in his report plot number 12 and he sought to amend his report which request was objected to by Counsel for the Defendant but the objection was overruled. 31.Upon cross-examination he testified that at the time of preparing his report on 15/02/2022 the suit property was not showing subdivision at the Land Registry and also it is registered in the name of Rosemary Ngendo. That he met with the purchasers and knew they were purchasers from the search. Further, that other than the search he never saw any Sale Agreement. With that the Plaintiff closed its case. Defence Evidence. 32.Rosemary Ng’endo Njau testified as DW1 in the Kikuyu language through a translator. She adopted her witness statement dated 27/03/2023 and produced a List of Documents bearing 9 exhibits of even date marked as “DW1Exh 1-9”. 33.On cross-examination she testified having sold the suit property for Kesh 600,000 to Isaac Kinuthia but she denied ELC NO. E120 OF 2022 12 | P a g e

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that they ever wrote any Sale Agreement. According to her, she was paid a deposit of Kesh 200,000. She testified having been approached by three (3) people who she did not know in 2007 and that in good faith she gave Mr. Kinuthia the original title deed, that they never recorded anywhere that she gave him the title deed. She testified that they were never to meet at the Advocate’s Law Firm and she denied that she only visited the suit property in 2016 after the initial engagement with Kinuthia in 2007. 34.She testified that in 2014, 2015 and 2016 she used to visit the suit property and found people were occupying her land and there were about five street boys sniffing glue who would chase her away using sticks. That the street boys threatened to kill her if she entered the suit property and she told her Advocate but that he may have not recorded this particular fact in the witness statement. She further testified that she could not go to the police to record a statement about her title since she is the one who gave the title to Mr. Kinuthia and that she was fearing for her life since Kinuthia was the Member of the County Assembly (MCA) of the area. 35.She told the Court that she never found Mr Kinuthia and she never reported him to the police and neither did she follow up to ensure prosecution of Mr. Kinuthia. That since going to her house in 2015 she never saw the wife of Mr. Kinuthia and neither Mr Kinuthia himself. ELC NO. E120 OF 2022 13 | P a g e

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36.It is her testimony that her grandson can clarify that Mr. Kinuthia actually went to her house. She then stated that she did not know that Mr Kinuthia has the original title deed. 37.She confirmed that there were investigations at Juja Police Station and that she reported that the title was lost because Mr. Kinuthia told her the title was missing. She denied having sold the land for Kesh 200,000 to the people referred to in the document at page 34. She also denied writing anything with Mr. Kinuthia terming the Agreement at page 34 as false. She stated that she sold the land to Kinuthia but not with anybody else and she further denied signing any document with Mr. Kinuthia. 38.According to her, the DCI never confirmed to her that the signature on the Land Agreement is hers. Further that she was not told by DCI that the signature is hers but that she never reported Mr. Kinuthia and Mr. Waweru for forging her signature. 39.On re-examination she confirmed that she gave Kinuthia the original copy of the title deed. She informed the Court that she however started the process of reporting about lost title because Mr. Kinuthia went to her house and said that the title was lost. She confirmed having been paid Kesh 200,000 and the balance left was Kesh 400,000. That when Mr. Kinuthia visited her house she was in the presence of Ian Njau and Tyron Njau her grandsons. ELC NO. E120 OF 2022 14 | P a g e

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40.DW2 - Ian Njau Nyambura adopted his witness statement dated 28/02/2025 as his evidence in chief. Upon crossexamination he stated that his witness statement does not refer to any parcel of land. On re-examination he told the Court that his statement is referring to the land in Theta along Kenyatta Road. 41.With that the Defence closed its case. 42.The Court issued directions on filing of submissions by the parties on 1/12/2025 granting them 45 days to comply and setting 21/04/2026 as a mention date to confirm compliance. The Court was not sitting on 21/04/2026 and the parties were given a fresh date of 23/04/2026. The Counsel for the Defendant a Mr Njuguna holding brief for Ms Kuria sought Court’s indulgence of two days to enable them file their written submissions. The Court graciously granted them five days to file and serve their written submissions and reserved a Judgment date. 43.As at the time of writing this judgment only the Plaintiff had filed their submissions. Summary of Plaintiff’s Submissions 44.In their submissions filed by their Counsel Mr. Jesse Kariuki the Plaintiffs, executive committee members of the Gwikuria Self Help Group, bring this action asserting ownership of land parcel Ruiru/Ruiru East Block 2/3278, which was purchased from the Defendant under a land Sale Agreement dated 28/12/2006. Following full payment of the ELC NO. E120 OF 2022 15 | P a g e

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purchase price on 3/04/2007, the Defendant handed over the original title deed and physical possession to the purchasers, who were acting on behalf of the group. The land was subsequently subdivided into sixteen plots and allocated to members, who have occupied, developed, and maintained quiet, uninterrupted possession for nineteen years. 45.They submit that in 2019, the Defendant fraudulently reported the title deed lost to obtain a replacement, despite forensic evidence from the Directorate of Criminal Investigations confirming her signature on both the initial Sale Agreement and the affidavit of loss. The Defendant made no lawful administrative or judicial efforts to recover the land, only alleging an unverified interaction with street boys when attempting an eviction. 46.The Plaintiffs assert that the Defendant's proprietary rights were extinguished under Section 7 of the Limitation of Actions Act possession. through In open, establishing continuous, the legal and adverse standards and procedural requirements for adverse possession, the Counsel in his submissions cite Kiarie & 2 Others v Magera (Civil Appeal 326 of 2017) [2018] KECA 467 (KLR), Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR, Mate Gitabi v Jane Kabubu Muga Alias Jane Kaburu Muga & 3 Others [2017] eKLR, Kasuve v Mwaani Investments Limited & 4 Others [2004] 1 KLR, Wabala v Okumu [1997] LLR 609 (CAK), and Bayete Co. Ltd v Kosgey ELC NO. E120 OF 2022 16 | P a g e

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[1998] LLR 813. These authorities establish that adverse possession requires open, exclusive occupation without force, secrecy, or license, and confirm that such a claim can be properly raised through a plaint rather than strictly by originating summons. Alternatively, the Plaintiffs contend that the Defendant's surrender of title and possession created an equitable constructive trust under Sections 25, 26, and 28 of the Land Registration Act and Section 3 of the Judicature Act. 47. To support the principle that a constructive trust serves as an overriding interest that limits statutory property rights and survives procedural omissions such as the lack of Land Control Board Consent, the submissions the Counsel cites the Supreme Court authority of Arvind Shah & 7 Others v Mombasa Bricks & Tiles Limited & 6 Others (Petition 18 (E020) of 2022), alongside the Court of Appeal decisions in Dias Property Limited & Another v Jack Kagao Githae & 8 Others and James Mugo King'a & 3 Others v Jack Kagao Githae & 2 Others (Nyeri Civil Appeals No. E155 & E157 of 2023) and George Chaguya Aliaza v Zephania Khisa Saul [2022] KECA 583 (KLR). 48.The Plaintiffs argue that the Defendant's procedural counterclaims should be completely disregarded and struck out. The Defendant’s initial statement of defence contained no formal counterclaim, and her subsequent amended ELC NO. E120 OF 2022 17 | P a g e

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defence was filed without the requisite leave of the Court. Furthermore, any substantive claim to recover the land by the Defendant is statute-barred under the twelve-year limitation period prescribed by Section 7 of the Limitation of Actions Act. Consequently, the Plaintiffs request that the registration of the Defendant as the proprietor be cancelled, the land be registered in the names of the Plaintiffs for the benefit of the group's members, and the costs of the suit be awarded to the Plaintiffs. Issues for Determination 49.Having carefully considered the pleadings, the oral testimony of the witnesses, the documentary evidence, and the written submissions filed by the Plaintiffs, the core issues that fall for determination in this matter are: 1) Whether the Plaintiffs have locus standi and properly represent the members of Gwikuria Self Help Group. 2) Whether the Plaintiffs have established a claim for adverse possession over land parcel RUIRU/RUIRU EAST BLOCK 2/3278 under Section 7 of the Limitation of Actions Act. 3) Whether, in the alternative, an equitable constructive trust was created over the suit property in favour of the Plaintiffs and members of the Gwikuria Self Help Group. 4) Whether the Defendant is entitled to the reliefs sought in her Defence and Counterclaim. 5) Who shall bear the costs of this suit? ELC NO. E120 OF 2022 18 | P a g e

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Analysis and Determination of the Issues 50.On the first issue, the suit was instituted by Executive Committee Officials on behalf of the members of Gwikuria Self Help Group. During cross-examination, PW1 admitted that he did not produce a formal authorization letter or minutes of a resolution authorizing this specific representation. 51.Under Kenyan law, an unregistered association or self-help group lacks distinct legal personality and must sue or be sued through its authorized representatives via a representative capacity. However, procedural technicalities ought not to defeat substantive justice where the identity and interest of the members are clear on the record. For this I take recourse in Article 159(2)(d) of the Constitution of Kenya, 2010. The evidence demonstrates that the officials were acting on behalf of named members who have taken physical allotments of the suit property. Thus, the Court finds that the Plaintiffs have sufficient standing to prosecute the suit for the group's benefit. 52.On the second issue, the Plaintiffs seek a declaration that they have acquired title to land parcel RUIRU/RUIRU EAST BLOCK 2/3278 by way of adverse possession, having allegedly been in continuous, open, and uninterrupted physical occupation since April 3, 2007. 53.Black’s Law Dictionary (11th Ed.) defines adverse possession as: ELC NO. E120 OF 2022 19 | P a g e

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"A method of acquiring title to real property by possession for a statutory period under certain conditions, esp. a non-permissive use that is actual, open and notorious, exclusive, hostile, and continuous." 54.Halsbury’s Laws of England (4th Edition, Volume 28) at paragraph 763 states: "At the determination of the period limited by the Limitation Act to any person for bringing an action to recover land, the title of that person to the land is extinguished." 55.Section 7 of the Limitation of Actions Act Chapter 22, Laws of Kenya provides: "An action may not be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person." 56.Therefore, to succeed in a claim for adverse possession, a claimant must prove the classic Latin doctrine of nec vi, nec clam, nec precario meaning that the possession was without force, without secrecy, and without permission and or license. 57.In Kasuve v Mwaani Investments Limited & 4 Others [2004] 1 KLR, the Court of Appeal established: ELC NO. E120 OF 2022 20 | P a g e

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"In order to acquire title by adverse possession, the possession must be open, notorious, adverse to the title of the owner, exclusive and continuous for a period of twelve years or more. Possession by permission or license of the owner cannot support a claim for adverse possession." 58.In Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR, the Court of Appeal reaffirmed: "Adverse possession is a doctrine of land law which allows a person who has been in open, uninterrupted, and continuous possession of land for a period of 12 years or more, without the title owner's permission, to claim ownership of that land. The possession must be adverse to the right of the owner, meaning it must be inconsistent with the owner’s title." 59.Similarly, in Mate Gitabi v Jane Kabubu Muga Alias Jane Kaburu Muga & 3 Others [2017] eKLR, the Court emphasized that time for adverse possession begins to run when the true owner's right of entry or action accrues, which occurs when the owner is dispossessed or discontinues possession and the adverse possessor assumes actual possession. 60.On the procedural issue of whether adverse possession can be commenced via a Plaint rather than an Originating Summons, the Court of Appeal in Kiarie & 2 Others v ELC NO. E120 OF 2022 21 | P a g e

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Magera (Civil Appeal 326 of 2017) [2018] KECA 467 (KLR) explicitly observed: "While Order 37 Rule 7 of the Civil Procedure Rules contemplates that claims for adverse possession be brought by way of Originating Summons, the choice of a Plaint is not fatal to the suit where complex issues of fraud, contract, and conflicting facts require viva voce evidence." 61. The entry of the Plaintiffs onto the suit land in 2007 originated from a Sale Agreement entered into on 28/12/2006, between the Defendant and representative buyers, Isaac Kinuthia and Paul Waweru. Full payment was made on 3/04/2007, whereupon the Defendant voluntarily surrendered physical possession and handed over the original title deed. 62.The Plaintiffs' initial entry was permissive pursuant to a sale transaction. However, under Kenyan Law, when a purchaser pays the full purchase price, takes possession, and the vendor fails or refuses to execute a formal transfer, the purchaser's possession becomes adverse to the vendor from the moment full payment is effected and performance is complete. 63.In Wabala v Okumu [1997] LLR 609 (CAK), the Court of Appeal held: "Where a purchaser of land enters into possession under an agreement for sale after ELC NO. E120 OF 2022 22 | P a g e

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paying the purchase price, time for adverse possession begins to run in his favor from the date he enters into possession or pays the full purchase price, as his occupation ceases to be permissive and becomes adverse to the seller who holds bare legal title." 64.Furthermore, in Bayete Co. Ltd v Kosgey [1998] LLR 813, the Court confirmed that a purchaser who enters into possession under an uncompleted contract of sale after paying the full purchase price occupies the land adversely to the vendor once the vendor defaults in executing the transfer. 65.From 3/04/2007, when full payment was rendered and the original title deed was delivered to the purchasers, the Defendant's legal right to recover the land accrued. The Plaintiffs subdivided the suit property into 16 subplots, allocated them, constructed dwelling houses, and lived thereon continuously. The Defendant took no lawful administrative or judicial steps to dispossess the Plaintiffs between April 2007 and April 2019 a period exceeding 12 years. Her unverified allegation that street boys prevented her entry between 2014 and 2016 does not constitute a lawful re-entry or assertion of title sufficient to break the continuity of adverse possession. ELC NO. E120 OF 2022 23 | P a g e

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66.Accordingly, the Defendant’s title was extinguished by operation of Section 7 of the Limitation of Actions Act upon the expiration of 12 years on 3/04/2019 67.The third issue is that alternatively, the Plaintiffs plead that an equitable constructive trust exists in their favour. Halsbury’s Laws of England (4th Edition, Volume 48) defines a constructive trust as: "A trust which arises by operation of law, irrespective of the intention of the parties, where it would be unconscionable for the owner of a legal estate to hold or retain the beneficial interest in the property." 68.Under Sections 25, 26, and 28 of the Land Registration Act, registered ownership is subject to overriding interests, which include rights acquired through prescription, adverse possession, or equitable trusts. 69.In the landmark decision Arvind Shah & 7 Others v Mombasa Bricks & Tiles Limited & 6 Others (Petition 18 (E020) of 2022) [2024] KESC, the Supreme Court of Kenya stated: "A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of the legal title to assert his beneficial ownership against another person... Equitable interests and constructive ELC NO. E120 OF 2022 trusts operate as overriding 24 | P a g e

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interests that bind the registered proprietor regardless of statutory registration formalities or procedural omissions." 70.In Dias Property Limited & Another v Jack Kagao Githae & 8 Others and James Mugo King'a & 3 Others v Jack Kagao Githae & 2 Others (Nyeri Civil Appeals No. E155 & E157 of 2023), the Court of Appeal reaffirmed: "Where a vendor receives the full purchase price for land and hands over possession to the purchaser, the vendor becomes a constructive trustee of the property for the purchaser. The lack of consent from the Land Control Board does not invalidate the equitable obligation created by full payment and delivery of possession." 71.Similarly, in George Chaguya Aliaza v Zephania Khisa Saul [2022] KECA 583 (KLR), the Court of Appeal held: "The doctrine of constructive trust applies to land transactions to prevent a vendor who has received full consideration from relying on statutory provisions or lack of formalities to defeat the equitable rights of a purchaser in physical occupation." 72.The facts established before this Court confirm that the Defendant received consideration, surrendered the original title deed, and ceded physical possession to the purchasers in 2007. Forensic examinations by the Directorate of Criminal ELC NO. E120 OF 2022 25 | P a g e

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Investigations (DCI) confirmed her signature on the Sale Agreement. Having taken full consideration and parted with possession, the Defendant became a constructive trustee holding the bare legal title for the benefit of the purchasers and their beneficiaries, the members of the Gwikuria Self Help Group. Her subsequent attempt in 2019 to declare the original title deed lost and obtain a replacement title was dishonest and unconscionable. Defendant’s Counter-Claim 73.The Defendant sought orders for eviction, permanent injunction, and demolition of structures erected on the suit property. 74.First, the record reveals that the original Statement of Defence contained no formal counterclaim, and the amended defence raising these prayers was filed without seeking or obtaining leave of the Court under Order 8 of the Civil Procedure Rules. 75.Second, even if the counterclaim were properly before the Court, any action by the Defendant to recover the land accrued on 3/04/2007. By the time the Defendant filed her defence and sought recovery of the land, more than 12 years had elapsed. Section 7 of the Limitation of Actions Act strictly bars her claim. The rights of the Defendant as the registered proprietor were completely extinguished under Section 17 of the Limitation of Actions Act. Therefore, the ELC NO. E120 OF 2022 26 | P a g e

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Defendant’s claims for eviction, injunction, and demolition are statute-barred and lack legal merit. 76.In light of the foregoing factual findings and settled legal principles, the Plaintiffs have successfully proved their case on a balance of probabilities both under the doctrine of adverse possession and under the alternative equitable principle of constructive trust. 77.Consequently, Judgment is hereby entered for the Plaintiffs against the Defendant in the following terms: a) It is hereby declared that the members of the Plaintiffs and Gwikuria Self Help Group have acquired title to land parcel number RUIRU/RUIRU EAST BLOCK 2/3278 by way of adverse possession under Section 7 of the Limitation of Actions Act. b) It is hereby ordered that the current registration of the Defendant, ROSEMARY W. NGENDO NJAU, as the proprietor of land parcel number RUIRU/RUIRU EAST BLOCK 2/3278 be and is hereby cancelled. c) It is hereby ordered that the Chief Land Registrar / Land Registrar, Thika, shall register land parcel number RUIRU/RUIRU EAST BLOCK 2/3278 in the names of the Plaintiffs (as Executive Committee Officials) to hold in trust ELC NO. E120 OF 2022 27 | P a g e

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for and for the benefit of the members of Gwikuria Self Help Group. d) It is hereby ordered that the Defendant's Counterclaim be and is hereby dismissed in its entirety. e) It is hereby ordered that the costs of this suit be borne by the Defendant. It is so ordered. DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAMS ON THIS 5TH DAY OF OCTOBER 2026. …………………… MOGENI J JUDGE In the presence of: Mr. Macharia for the Plaintiffs Mr. Njuguna for the Defendant Mr. Melita - Court Assistant ……………..……… MOGENI J JUDGE ELC NO. E120 OF 2022 28 | P a g e

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